We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

You made a mistake; not a harmless mistake.  You are, of course, obligated to reveal that clinical fact to the patient.

Frankly, you also feel terrible about it because you are a good doctor and care about your patients.

You now face the question of whether to actually offer an apology to your patient.

The up-side is not just that you will feel better but that it may actually blunt the patient’s anger and help avoid a lawsuit.

The downside is that you may still get sued. And what you say may be potentially admissible as evidence in that case.

The reason that such statements are potentially admissible is because it is seen as an “admission against interest”, an exception to the Hearsay Rule, a rule of evidence that generally blocks statements made out of court from being used to prove the truth of what was stated. An apology is considered presumptively truthful because why would anyone say something negative about himself unless it was, in fact, true.

The first critical issue is therefore to look to the applicable law to see if it has altered this common law practice to shield your apology from being able to be presented in court as evidence against you.

States tend to offer a shield to physician apologies based on the premise that lawsuits can be averted if patients feel that receive the benefit of an honest explanation of what happened by a doctor who takes the error to heart.

Starting with Massachusetts in 1986, 36 states (and the District of Columbia) now have some form of apology shield law.

However, what is shielded varies state to state.

If you practice in Colorado, you can relate in detail the error you made. You can even describe it as having been negligent conduct. None of what you say will be admissible in court as long as it is part of an apology because the statute specifically includes expressions of “fault” in what is shielded.

However, Colorado is the exception rather than the rule. Most apology statutes are not this broad.

The reason for this limitation to immunity is because such laws, by creating exclusions from evidence, are inherently antithetical to truth-finding.  They are therefore designed to be narrow, to be limited only to settings where there is a very good policy reason to keep a jury from knowing the full facts.

Apology laws were created to lessen litigation by creating an incentive for doctors to be truthful with patients early on.  Apology laws were not designed to foreclose an injured patient from being able to seek compensation once a doctor actually admitted to liability. So, most apology laws shield the expression of regret but not the concession of fault.

For example, Maine’s apology law provides that “Nothing in this section prohibits the admissibility of a statement of fault.” Texas’s apology law shields a doctor’s statement that “expresses sympathy or a general sense of benevolence” but does not refer to statements of actual fault, thereby excluding those from the shield.

In most states, for example, if a surgeon tells a patient “I am sorry about the pain and extra procedures you had. I mistakenly cut your common bile duct during surgery- ” only the first sentence would not be admissible in court. The sentence encompassing fault could be admitted.

This actually has the potential to create a situation in which the humanizing aspect of the apology is removed and all that is left is the fault admission. Ouch.

For example, in a recent Ohio decision, a patient died following back surgery and her husband sued the surgeon. The jury was told about the surgeon’s conversation with the patient’s family. The surgeon stated that he nicked an artery and took full responsibility for the error.  The jury never heard any testimony about the surgeon also stating he was sorry for his mistake. The verdict in favor of the plaintiff was appealed. The surgeon lost. The court ruled the purpose of the apology law had actually been fulfilled. The appellate court held that the purpose of the Ohio apology law “was to protect pure expressions of apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, but not admissions of fault.”

Doctors in states where an apology law makes a distinction between expressions of sympathy and expressions of fault may result in crabbed statements like “I am sorry that the wrong leg was removed” as though the doctor is somehow an outsider to the surgery where that occurred.

However, a statement like that actually has all the negative aspects of pointing the patient straight to the liability issues and keeping the patient angry at a perceived cover-up while offering none of the softening aspects of a sincere apology.

It is also based on a fundamental misunderstanding of what role a statement of fault actually can play in a malpractice case.

In what comes as a surprise to most doctors, not only is it not a slam-dunk for the plaintiff that ends the case, it is actually of very limited use.

That is because of what must be proven in a medical negligence action and who must prove it.

The plaintiff bears the burden of proof  not of showing the doctor’s care was imperfect or even a flat-out error, but that that care fell below the Standard of Care, thereby breaching the duty of care that the doctor owed, and that breach caused the injury.

The way the patient proves that failure to meet the Standard of Care is by proffering experts who opine that the Standard of Care was not met.

The doctor’s own statement of his personal fault is not, however, proof of such a departure from good and accepted medical practice.

Prior to the advent of apology laws, courts consistently held that a doctor’s individual belief that he or she deviated from their own standards of care and skill was not in and of itself proof of a departure from the Standard of Care.

Therefore, even such strong statements as the perforation of the patient’s uterus “never should have happened” (in a Vermont case) or “I should have had an X-ray taken in the beginning. I know, it is not your fault…it is all my own.” (in a California case) were not considered to be, in it of themselves, proof of actionable  negligence. As the court in the California case noted, admission of fault “may amount to no more than an admission of bona fide mistake or misfortune, and thus be insufficient to establish negligence.”

States that have apology laws have actually doubled down on that approach in the service of policy, even to the point of actually declaring that statements of fault have no value at all.

In Massachusetts – the first state to adopt an apology law – a doctor’s statement that “I’m sorry I cut the nerve” was held to have “no probative value as an admission of responsibility or liability.”

Likewise, in an Alabama case, the doctor’s apology for removing the wrong ovary was held to amount “at most” “to an admission that he operated on the patient while he was under the impression that the right ovary, rather than the left, was the ovary that had been previously diagnosed with a cyst.” Since the apology did not contradict the doctor’s testimony or that of his expert that his actions fell within the Standard of Care, it was held to “not create a genuine issue of material fact with regard to the claim that the physician committed an error.”

In Georgia, “This was my fault” referring to a patient needing an emergency colostomy after post-resection necrosis occurred was held by a court to be just a statement of “remorse”.

In other words, if you practice in a state with an apology statute, your statements will likely be held to have no significant effect on the plaintiff still needing to meet his burden of proving negligence. Even if your state does not have such a statute there is a common law trend to minimizing any negative impact of an apology.

In that setting, actual fear of being open with your patient – a fear that often leads to evasive conduct that convinces the patient to call a lawyer – should largely fall away.

The caveat, however, is that apologizing and taking responsibility for a medical error is not a game for amateurs.

You want to take two initial steps – consult with Risk Management if the events occurred in a hospital and call your malpractice carrier – before you go talk with the patient.

Do the first because you will want the backing of your hospital if you are sued.

Do the second because your carrier may try to disavow coverage if you fail to inform it of a developing matter. You need to allow your carrier to weigh-in before you take a step that could materially affect a future defense.

You also want to obtain expert advice – either from hospital counsel, an attorney proffered by your insurer or an attorney you hire – on the specific statutory requirements in your state.

Most of these laws apply to “any statements, gestures, or expressions of apology, benevolence, sympathy, or commiseration made by a health care provider to an alleged victim of an unanticipated outcome or the victim’s relative or representative.” In most states, the “statement, gesture or expression must be related to the discomfort, pain, suffering, injury or death of the alleged victim” those elements are not uniform (for example, North Dakota and Utah do not require the second element). Even when the elements appear to be uniform, the rules may be subject to further distinctions that require careful consideration.

For example, in Vermont, oral expressions are covered. In Maryland and Oregon apologies can be made orally, in writing, or by conduct.

Some states place a time limit on when the apology must be rendered. For example, Washington and Vermont require the doctor offer the apology within 30 days of a medical error or within 30 days of when the doctor knew or should have known of the consequences of that error. Illinois will only shield an apology made within 72 hours of when the doctor knew or should have known of the potential cause of a bad outcome. In Massachusetts, the law codifies a 6-month resolution period during which a shielded apology can be offered.

You also need to pay attention to who hears the apology.  Some states take a wide view, such as Maine, which includes domestic partners, and Montana and Delaware, which even include friends. Other states take a much narrower approach, such as Georgia, which only covers expressions made to “family members and representatives of the patient”.

So – if, after considering the legal implications and getting proper advice, you have now decided that you will be offering an apology, how should you go about it?

Start with the exact words that you will use.

Do not plan to rely on wide statutory language over what is covered. Instead, say “I am sorry that I…” in just those words.

There is dual reason for this:

• If you want the statement kept out this will make it more likely you have conformed to any apology statute.
• If the statement comes in either because there is no shielding law or because you later tactically decide that it helps you to have the jury hear it, this is a statement that a jury will appreciate you having straightforwardly made.

That you not present an exquisitely parsed statement cannot be over-emphasized. It is in the sentences that will follow – the one in which you place the error in its clinical context – that your defense will lie.  The apology, however, should be simple and genuine.

This actually leads us to the critical evidentiary point: that the person actually putting your apology in evidence will be the plaintiff, who will be relating the event.

An obviously insincere apology, an apology offered in a rushed way, an apology couched in caveats and reminders about informed consent, an apology stated in stilted legalistic language or a non-apology-apology like “I’m sorry that the care that you received did not meet your expectations” will be seen for what it is. Self –serving.

One final point that should be borne in mind is that the note documenting your discussion with the patient in which you revealed the problem and its cause should not specifically state that you apologized. Such a statement would force you to have to try to get it redacted under the apology statute and, if you fail, it then remains as part of the medical record, which is in evidence,  even if the plaintiff does not mention it.

In summary: Medical errors that will have a lasting impact on the patient’s health must be disclosed. Offering an actual apology can go far to decompressing patient anger and suspicion and so making a lawsuit less likely. A majority of states now shield such physician statements to varying degrees. While the actual risk of an apology coming into evidence is generally over-estimated and it may even prove tactically desirable for the doctor to have the apology revealed, it is essential that the doctor considering an apology should avail themselves of all statutory protections at the outset. A doctor planning to make such a statement should therefore consult Risk Management, their malpractice carrier and counsel to ensure that the process is conducted within the limits of the applicable law.

[Medical Justice note. I used to believe that an apology to a patient opened the door to litigation. My rationale was the patient would conclude “if there’s smoke, there must be fire.” So, even if a statement of remorse was shielded, it could open the door to a much larger investigation looking for information that would support a claim. I have since changed my mind on the topic. Many lawsuits are initiated because the patient wants to find out what happened – what went wrong. If the doctor clams up, a lawsuit may be the only way to get these answers. By being reasonably candid upfront, I have seen first-hand how many patients and their families are satisfied by the explanation – and choose not to sue. Or if they do believe a settlement is fair and reasonable, the amount of money which makes up the inevitable settlement is often less than what could be obtained in court. So, I believe transparency and empathy are in the patient’s best interest – and the doctor’s best interest. Just my two cents worth.]